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Michigan State Police Reverse on Use of Messaging App That Can Evade FOIA Requests

Former inspector Michael Hahn sued the MSP, alleging he was fired in retaliation for speaking out against “unlawful racial and gender hiring and promotion preference.” James Fett, the attorney representing Hahn, suspected foul play when his discovery request for communications regarding the four-month investigation of Hahn by numerous MSP officials garnered almost no messages. In response to Fett’s motion to compel, Assistant Attorney General Mark Donnelly ultimately admitted that MSP Lieutenant Colonel Kyle Bowman, Major Emmitt McGowan, Major Beth Clark, 1st Lieutenant Brody Boucher, and 1st Lieutenant Jason Nemecek used the Signal encryption app on their state-issued cellphones that had the self-destruct feature.

While encryption is necessary to protect sensitive inter-agency communications from hackers and criminals, those encrypted messages must be stored to allow retrieval for such purposes as Freedom of Information Act requests and discovery requests during litigation. But the Michigan Department of Technology Management and Budget (“MDTMB”) has thus far not restricted or forbidden use of apps that do not create permanent records of official communications.

When asked if employees are permitted to use encryption apps on their state-issued phones, MDTMB spokesman Caleb Buhs answered that it’s allowed “if the application is for legitimate state business.” But when asked to give examples of legitimate state business that permitted no record of official communications between state employees, Buhs did not respond. Judging by a lack of response and the MDTMB’s inaction, this lack of government transparency and failure to record government actions will have to be remedied through litigation. Gasper’s policy is a first step. 

 

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